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England and Wales Family Court Decisions (High Court Judges)
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B e f o r e :
- and -
RRL & ORS
Mr F Feehan QC and Mr C Hames (instructed by Goodman Ray) appeared on behalf of Respondent
Mr D Williams QC and Miss J Renton (instructed by The International Family Law Group LLP) appeared on behalf of T
Mr S Kearney appeared on behalf of the Guardian
Hearing dates: 12 and 13 May 2014
Crown Copyright ©
MR. JUSTICE WOOD:
The Parties: Representation
Background Agreed Facts
(i) The Court of Appeal: in the light of their order discharging Cobb J's return order in respect of T, would there be a grave risk that the return of the boys to Spain would expose them to physical or psychological harm or otherwise place them in an intolerable position by virtue of their separation from T?
(ii) The Supreme Court: were all, or any, of the children habitually resident in Spain on the relevant date, namely, 5th January 2013, and what order should be made in the Convention proceedings in respect of the three boys, who are the three youngest children, L, A and N.
Habitual Residence: The Law: Summary
(i) A v. A (Child: Habitual Residence), 2013 UKSC 60;
(ii) Re: KL (Abduction: Habitual Residence: Inherent Jurisdiction)
2013 UKSC 75; and,
(iii) This case in the Supreme Court Re: LC (Abduction: Habitual Residence: State of Mind) 2014 UKSC 1.
"Where a child of any age goes lawfully to reside with a parent in a state in which that parent is habitually resident, it will no doubt be highly unusual for that child not to acquire habitual residence there too. The same may be said of a situation in which, perhaps after living with a member of the wider family, a child goes to reside there with both parents. But in highly unusual cases there must be room for a different conclusion, and the requirement of some integration creates room for it perfectly. No different conclusion will be reached in the case of a young child. But, where the child is older, in particular one who is an adolescent or who should be treated as an adolescent because she (or he) has the maturity of an adolescent, and perhaps also where (to take the facts of this case) the older child's residence with the parent proves to be of short duration, the inquiry into her integration in the new environment must encompass more than the surface features of her life there. I see no justification for a refusal even to consider evidence of her own state of mind during the period of her residence there. Her mind may - possibly have been in a state of rebellious turmoil about the home chosen for her which would be inconsistent with any significant degree of integration on her part. In the debate in this court about the occasional relevance of this dimension, references have been made to the "wishes" "views" "intentions" and "decisions" of the child. But, in my opinion, none of those words is apt. What can occasionally be relevant to whether an older child shares her parent's habitual residence is her state of mind during the period of her residence with that parent. In the Nilish Shah case, cited above, in which he propounded the test recently abandoned, Lord Scarman observed at p.344 that proof of ordinary (or habitual) residence was "ultimately a question of fact, depending more upon the evidence of matters susceptible of objective proof than upon evidence as to state of mind." Nowadays some might not accept that evidence of state of mind was not susceptible of objective proof, but, in so far as Lord Scarman's observation might be taken to exclude the relevance of a person's state of mind to her habitual residence, I suggest that this court should consign it to legal history, along with the test which he propounded."
"In the light of her age and of Ms. Vivian's assessment of her maturity,
T's assertions to Ms. Vivian about her state of mind during her residence in Spain in 2012, set out in para 26 above, have at least some relevance to
a determination whether her residence there was habitual. For they are relevant to whether she was integrated to some degree in a social and family environment there. But not even when, rather as a cross-check against his earlier conclusion Cobb J turned to consider T's integration (and that of the boys) in Spain did he address her assertions to Ms. Vivian. Indeed when, in a later section of his judgment, he addressed her assertions, his focus was on her hostility at that time, namely in 2013, towards a return to Spain. Nowhere did he give separate or any attention to what she had said about her state of mind when in Spain in 2012. The Court of Appeal was impressed by the fact that in refusing to grant permission to the father to appeal, Cobb J observed that, "The stated wishes of the three older children to be in England now...did not affect their integration in Spain at the time." Cobb J's observation was correct. But what might have affected the integration at any rate of T was not her wishes when in England in 2013 but what she said about her state of mind when in Spain in 2012."
i) T's various assertions to Ms. Vivian about her state of mind when in Spain were incidental to an inquiry of which the focus was different.
ii) T's assertions were made after she had left Spain and may not deserve the weight which might attach, for example, to any e-mails or letters which she might have sent, or to any statements which she might have made on social networking sites, while she was there.
iii) Indeed T's primary purpose was to communicate to Ms. Vivian her strong objection to returning to Spain and her purpose may have coloured her descriptions of her state of mind when there.
iv) Cobb J has already rejected as inaccurate T's identification to
Ms. Vivian of the time when she realised that the family's stay in Spain was intended to be indefinite.
v) Since it is only in the proceedings in this court that the searchlight has directly shone on T's statements to Ms. Vivian about her state of mind when in Spain, the mother has had no opportunity to give evidence in response to them or, by counsel, to make detailed submissions about them.
vi) T's statements in that regard require to be weighed against the written and oral evidence which led Cobb J to find that T had achieved some degree of integration in Spain. In relation to her integration, the mother placed before the Judge a substantial amount of evidence, including statements not only by herself but also by her mother, her sister and her two brothers and by T's school in Spain, to which in these appeals no specific reference has been made, and in relation to it the mother also gave oral evidence, of which this court does not even have a transcript."
"If the issue of T's habitual residence in Spain is therefore to be remitted for determination in the High Court, should Cobb J's conclusion that the three boys were habitually resident there also be set aside so that that issue be likewise determined in the High Court? In my view this is the most difficult question posed by these appeals. When they were in Spain, none of the boys was an adolescent or had the maturity of an adolescent. It will be clear from my formulation of the question in para 1 above that in my view it is, in principle, the state of mind of adolescent children during their residence in a place that may affect whether it was habitual. Thus, although when considering the alleged objections of L and A to returning to Spain, Cobb J concluded that they had at least attained an age and
a degree of maturity at which it was appropriate to take account of their views and although they made comments to Ms. Vivian indicative of lack of integration on their part in Spain, I find it hard to imagine that a judge's exploration of their state of mine could, on its own, alter the conclusion about their integration in Spain reached by Cobb J be reference to the other evidence before him. But there is another feature in play; it is the presence of their older sister, T, in the daily life of all three of the boys. Ms. Vivian described the four children as a very close sibling group. There was
a solidarity in the presentation of the three older children to her. When Cobb J addressed the integration of the children in Spain, he did so compendiously in relation to all four of them. In the fuller, more focused, inquiry into T's habitual residence, the High Court will no doubt receive evidence about the integration in Spain of the four children as a whole. Were it to conclude that T never lost her English habitual residence, the court would need at any rate to consider whether its conclusion could sit easily alongside a conclusion that, by contrast, the three boys acquired
a habitual residence in Spain. In relation to their habitual residence, might T's habitual residence in England (if such it was) be a counterweight to the obvious significance of the mother's habitual residence in Spain? It can be inconvenient for a judge at a remitted hearing to have to note that all options have not been left open to him. By a narrow margin, I find myself persuaded that the proper course is to set aside the finding of habitual residence in respect also of the three boys so that the issue can be reconsidered in relation to all four children."
The minority also agreed that the earlier orders should be set aside.
"58. In my view, the answer to the question of principle has to be the same for all three children; their state of mind is relevant to whether or not they have acquired a habitual residence in the place where they are living. The logic which makes an adolescent's state of mind relevant applies equally to the younger children, although of course the answer to the factual question may be difference in their case. The logic flows from the principles adopted by the Court of Justice of the European Union in Proceedings brought by A (Case C-523 07) and Mercredi v. Chaffe (Case C- 497 IOPPU) and how adopted by this Court in the recent cases of A v A  UKSC 60,  3 WLR 761 and In re L (A Child) (Habitual Residence) 2013 UKSC 75;  3 WLR 1597.
59. The first principle is that habitual residence is a question of fact; has the residence of a particular person in a particular place acquired the necessary degree of stability (permanent is the word used in the English versions of the two CJEU judgments) to become habitual? It is not a matter of intention: one does not acquire a habitual residence merely by intending to do so; nor does one fail to acquire one merely by not intending to do so. An illegal immigrant may desperately want to become habitually resident in this country, but that does not mean that he does so. A tax exile may desperately want to lose his habitual residence here, but that does not mean that he does so. Hence, although much was made of it in argument, the question of whether or not a child is "Gillick-competent" is not the point.
60. In the case of these three children, as of others, the question is the quality of their residence in which all sorts of factors may be relevant. Some of these are objective: how long were they there, what were their living conditions while there, were they at school or at work, and so on? But subjective factors are also relevant: what was the reason for their being there, and what were their perceptions about being there? I agree with Lord Wilson (paragraph 37) that "wishes", "views", "intentions" and "decisions" are not the right words, whether we are considering the habitual residence of a child or indeed an adult. It is better to think in terms of the reasons why a person is in a particular place and his or her perception of the situation while there their state of mind. All of these factors feed into the essential question, which is whether the child has achieved a sufficient degree of integration into a social and family environment in the country in question for his or her residence there to be termed "habitual".
61. It would be wrong to overlay these essentially factual questions with a rule that the perceptions of younger children are irrelevant, just as it was to overlay them with a rule (rejected in A v A) that a child automatically shares the habitual residence of the parent with whom he is living. The age of the child is of course relevant to the factual question being asked. As the CJEC pointed out in Mercredi v. Chaffe, at paragraph 53:
"The social and family environment of the child, which is fundamental in determining the place where the child is habitually resident, comprises various factors which vary according to the age of the child. The factors to be taken into account in the case of a child of school age are thus not the same as those to be considered in the case of a child who has left school and are again not the same as those relevant to an infant."
62. Clearly, therefore, this is a child-centred approach. It is the child's habitual residence which is in question. It is the child's integration which is under consideration. Each child is an individual with his own experiences and his own perceptions. These are not necessarily determined by the decisions of his parents, although sometimes these will leave him with no choice but to buckle down and get on with it. The tiny baby whose mother took him back to her home country in Mercredi v Chaffe was in a very different situation from any of the three children with whom we are concerned. The environment of an infant or very young child is (one hopes) a family environment and so determined by reference to the person with whom he lives. But once a child leaves the family environment and goes to school, his social world widens and there are more factors to be taken into account. Furthermore, where parents are separated, there may well be two possible homes in which the children can live and the children will be well aware of this. This may well affect the degree of their integration in a new environment.
63. The quality of a child's stay in a new environment, in which he has only recently arrived, cannot be assessed without reference to the past. Some habitual residences may be harder to lose than others and others may be harder to gain. If a person leaves his home country with the intention of emigrating and having made all the necessary plans to do so, he may lose one habitual residence immediately and acquire a new one very quickly. If a person leaves his home country for a temporary purpose or in ambiguous circumstances, he may not lose his habitual residence there for some time, if at all, and correspondingly he will not acquire a new habitual residence until then or even later. Of course there are many permutations in between, where a person may lose one habitual residence without gaining another.
64. I agree with Lord Wilson that Cobb J did not approach the question in the way in which he no doubt would have done had he had the benefit of this Court's decisions in A v A and In re L. He approached it very much from the point of view of parental rights. Under English law, the mother alone has parental responsibility for the two older children (only because the change in the law giving parental responsibility to all fathers named on the birth certificate only came into force later; we have no evidence as to what the position is under Spanish law). She could therefore change their habitual residence. The father does have parental responsibility for the two younger children, but Cobb J held that he had (albeit reluctantly) consented to their change in habitual residence. But it is not a question of the parents' determining the habitual residence of their children. It is a question of the impact of the parental decisions about where they and the children will live upon the factual question of where the children habitually reside."
Article 13(b) of the Convention: Relevant to Question 1
"11. From In re E, a number of principles can be distilled:
(i) while the Article will naturally be applied restrictively because of the nature of the defence set out, its wording should not be construed restrictively the words of the Article are plain and do not require any "gloss" (paras 30 31);
(ii) the burden is on the parent (or other person) who is opposing the child's return to the state of habitual residence to produce evidence which substantiates the defence (though since it will be unusual for a court to hear oral evidence in Hague Convention proceedings, it needs to be borne in mind that neither the evidence nor any rebuttal will usually have been tested in cross-examination) (paragraph 32);
(iii) the risk to the child must be "grave", which is greater than the "real" risk which courts sometimes consider in other contexts (paragraph 33);
(iv) it is the risk which must be grave, not the harm (though there is a link between the two) (paragraph 33);
(v) the word "intolerable" is a strong word, but in the context of a child means "a situation which this particular child in these particular circumstances should not be expected to tolerate" (paragraph 34, quoting In re D (A Child) (Abduction: Rights of Custody)  UKHL 51,  1 AC 619, paragraph 52);
(vi) however, "Every child has to put up with a certain amount of rough and tumble, discomfort and distress. It is part of growing up" (paragraph 34);
(vii) if there is a grave risk of harm, the source of that risk is irrelevant (paragraph 34);
(viii) the question of grave risk is forward-looking (though not restricted to the immediate future), and "the situation which the child will face on return depends crucially on the protective measures which can be put in place to secure that the child will not be called upon to face an intolerable situation when she gets home" (paragraph 35);
(ix) where there are disputed issues of fact about domestic violence or similar concerns, the court should start by making an assessment of whether, assuming the allegations are true, they would amount to an intolerable situation and, if so, whether effective protective measures could be put in place; only if the answer is 'no' need the court embark on any attempt to resolve the disputed issues (paragraph 36).
Further Factual Background
(i) Three statements from the mother (25th May 2013, 5th November 2013 and 6th May 2014). There are substantial exhibits attached to those documents.
(ii) Four statements from the father (7th May 2013, 21st October 2013, 9th April 2014, and 12th May 2014). Likewise there are substantial exhibits attached to those documents.
(iii)Two statements of Ms. Chadha, a solicitor instructed by L & A following the decision of Cobb J, L and A wishing her to represent them in their applications within the continuing appellate proceedings. Those two statements are dated 26th June 2013 and 11th September 2013.
(iv) Two statements of Ms. Blackburn, dated 28th June 2013 and 4th April 2014.
(v) School reports on T, 4th February 2014 and 14th February 2014.
(vi) Ms. Vivian's third report of 8th May 2014
(vii) The schedule to this judgment as earlier noted.
(viii) Miscellaneous documents including photographs, e-mails, Facebook entries, et cetera.
(ix )Some documents from the Spanish proceedings instituted by the mother on 30th April 2013.
(x) Oral evidence from both of the parents.
(xi) Oral evidence from Ms. Vivian.
As already noted, I have not had the transcripts of the oral evidence of the mother, nor indeed of the father, when they gave evidence before Cobb J, but
I have had the transcript of Ms. Vivian's evidence to him.
Cobb J's Findings: Habitual Residence: Summary
"21. Once in Spain, the mother and children moved in with the maternal grandmother; the maternal uncle arranged (this appears to be accepted) for the children's rooms to be re-decorated and furnished to their taste and needs. The mother made arrangements for the children to commence school, telling me that the parents had earlier agreed to the children attending bi-lingual schools: accordingly, T joined the Instituto, while the boys attended a Collegio Publico. Over the following weeks, unsurprisingly, the children made friends (at least this is what T told Ms Vivian, a point acknowledged by the father). I note that at the end of term, T was reported to have had "a good school performance and always showed a perfect adaptation to the course and the Academy", she "can be described as an excellent student, very participative and has always shown a great interest in the different subjects". The father accepts that the children did "reasonably well" in their Spanish schools."
"28. The mother says that she spoke to the children during this holiday with the father, and they talked to her "very normally". However, it was predictable that it would be upsetting for the children, and for the father, for the children to return to B for Christmas. I suspect that the father had not prepared himself adequately for the children's emotional reactions, and as the holiday drew to its close he allowed the children's reasonable upset to govern his own rational thinking."
"(vi) Simultaneous with the ending of the parents' relationship in the spring of 2012, both the mother and the father were individually deeply concerned about T's unhappiness at P School; both were aware that she was being bullied; both were aware of her upset on the return from the school trip in April; her misery was apparent to both;
(viii) When it was apparent to the mother that T was genuinely unhappy at school, it eradicated one of the last few potential reasons for remaining in England; T's unhappiness at school endured to the end of the summer term, and her reluctance to be in school for the last few days of the summer term only served to confirm to the mother that her decision was the right one;
xii) That the mother and father did tell L at least about a month before he left (i.e. towards the end of June) that he would be leaving permanently to live in Spain (as L told Ms. Vivian);
xiii) From a date no less than one week before the departure, T knew that she was leaving England and P school; this was not a secret; it was readily accessible information on her Facebook page; and
xiv) The mother organised a party for T; it was essentially a farewell party for her."
"42. In relation to the period after 24 July, I further find that:
a. The children settled in reasonably well to the maternal grandmother's flat in Madrid; T had her own room; the boys shared a room; over the weeks following their arrival, the rooms were decorated and furnished appropriate to their tastes and needs;
b. The children settled into full-time education in their new schools in Madrid; they appeared to enjoy them, and did reasonably well in them; L came top of his class (according to mother cross-examination);
c. The children made friends in Spain certainly T and L;
d. The children are to a greater or lesser extent bilingual, and would not have experienced any material difficulties with the language;
And this must be seen in the context that:
e. The children are Spanish Nationals, with a Spanish mother, and Spanish extended family.
And further that:
f. The father accepted the position of the children living in Spain, albeit perhaps (albeit privately) resentfully at times."
"65. On the facts of this case, I am satisfied that the father's agreement to the younger children's move to Spain was clear, and unconditional, and was in that sense effective to facilitate a change of habitual residence. It was a true bilateral agreement; the agreement was to their stay being indefinite. In that sense it is less important for me to look at the 'integration' argument."
"68. The move to Spain was plainly not an easy one for the children, undertaken against a backdrop of months (probably years) of bitterness and rancour between their parents (and an associated unpleasant family atmosphere in the B home); significantly, they separated from their father for the first time and early contact between the father and the children was difficult to achieve. Inevitably a move, particularly one involving a move of country, created a hiatus in the children's lives, and I have to view 'integration' in that context.
69. In November they had contact with their father; this in my judgment served to unsettle them, not because he did anything deliberate to unsettle them, but because it brought home to them how much they missed him. Overall, however, once in Spain, I am satisfied, for the reasons set out in §42 above, that they did achieve a significant degree of integration into their new social and family environment."
Cobb J's Findings: Children's Objections/Wishes: Summary
"82. Her first interview was with T; she found T to be 'a confident, intelligent young girl whose maturity seemed to me to be beyond her years. I think her mature presentation is a reflection of her innate intelligence and personality rather than something that she has prematurely had to acquire as a coping strategy and out of necessity because of her own life experiences'."
"84. It appeared that T had a rather dismissive attitude to educational standards in Spain, a matter of importance to her; she was also, separately, highly critical of her mother's conduct in removing the children (as she described it in interview) peremptorily in July 2012, and failing to prioritise their needs since that time. When asked if she would go to Spain if a return order was made, T is reported to have said, "No, I would do everything I could I would not go, not pack and not get in the car.""
"43. I would expect that, given the passage of time and their different ages and stages of development, the children's views might have changed or hardened particularly as the legal proceedings have been ongoing. However, the children remain consistent in their views and report their feelings about England in a similar vein that they did to me many months ago, although I think L and A now speak with greater strength, conviction and rationality. Their views have been formed over a period of months and not been made on the spur of the moment. This consistency is, I think, an indication that their views are not contrived simply for the purposes of these proceedings, but that they are in fact authentic, their own, genuinely and strongly held, and a proper reflection of their own truth, feelings, emotions and experiences. As L said: 'most of the stuff is hard to describe, it's something I have inside'. A year on from my last report, England for these children continues to be where their day to day routine is, their base of reference, where their connections are and their security lies. These things are important to all children, not least these particular children, if they are to thrive and develop happily and healthily. None of this is any surprise given that they have spent their entire lives in this country other than the five months when they were in Spain."
With all of those matters in mind let me look now at Cobb J's findings.
Cobb J's Findings: Revisited
(i) Cobb J was considering the question of habitual residence with the approved but soon to be modified and/or abandoned test, largely, if not exclusively, focused on parental intentions and not the children's integration from the child's perspective. It is not possible to carry out the enquiry envisaged by the Supreme Court without, in my view, revisiting those findings.
(ii) Each child now has party status, which has led to a large body of new information and a quite different approach to that material and the evidence proffered on their behalf; and the way in which cross-examination of the parents has been carried out (again from the perspective of the child).
(iii) The range of child-focused new evidence has been illuminating, as has been the response of each parent to factual challenges to it. Both points (i) and (ii) above have led me to conclude that some important aspects of the evidence before Cobb J on integration cannot survive, as I shall further consider below (see paragraph 55).
"75. The objective evidence records an extraordinary state of affairs. The mother left it until the very last day of term to withdraw her daughter from school. T was clearly not too happy about her friends knowing that she was leaving. This is consistent, both with the judge's finding that by then, very late in the day, she knew her mother's plan was that they should move, and with her own account to Ms Vivian that she was not sure what the real situation was, partly because her mother had made similar threats before and partly because she herself did not really accept it."
(i) Whether T knew about the move one month or less before it took place, there was no discussion with her, let alone the many discussions which the mother asserted to me had taken place.
(ii) Contrary to the mother's evidence, although there had been one (or at the most two) occasions of brief duration when T was bullied at her High School, she was not miserable there, without friends, and failing. The most potent objective evidence that established that she was thriving and happy is contained in her school report for the year ending July 2012. Across the board from all her teachers she gets the highest praise, and her own assessments of her progress, and her real enjoyment of the subjects and of the school, shines through, not just as described by the teachers, but evidenced in all of her own detailed responses to their observations (see Section C 451d u).
(iii ) She had wanted to go to Oxford University since the age of eight and had a bursary to her High School which she lost by the mother's peremptory removal of her, thus derailing T's first class education without any form of consultation with her daughter.
(iv) She was not clear if she would be going to Spain permanently or returning.
(v) The older of the three boys, L and A, were removed from their schools with limited or no warning.
(xi) There was no opportunity to say their farewells to their schools and to their friends at their schools. I do not accept the mother's evidence that they had no friends.
(vii) There were no substantive discussions with them about the move and all it entailed, both in social terms or educational, and particularly in terms of contact with their father.
(viii) The extra-curricular activities (for example cornet lessons for L and Cubs) were cancelled peremptorily, as Cobb J noted.
(ix) They took little with them, either by way of clothes or toys, books, et cetera. They left behind almost everything to which they were attached. I do not accept the mother's evidence that the children had no real attachment to these material things and did not mind abandoning them (for example, T's books of which she is inordinately proud).
(x) The plan of the mother on departure was to rent a new home, but to go to her mother's home temporarily before so doing. This soon changed to a plan of living permanently at the grandmother's. This of itself led T and the older boys to experience their time there (before entering their new schools in mid-September) as having the air of a holiday spent at their grandmother's, which they had enjoyed in Spain annually over many years.
(xi) There were many arguments between the maternal aunt and the mother
(I emphasise, contrary to the mother's evidence about this) on the subject of the occupation by the mother and children of parts of the grandmother's flat and the strain it was putting on the grandmother, arguments of which the children were very well aware.
(xii) There was no real research by the mother about schools certainly none in advance of the move, and even on the mother's evidence to me, which I reject, her case is at its highest that the children were all very familiar with the schools on offer because their cousins or "friends" went to them. In other words, the mother's case appears to be that the schools were chosen on the basis of anecdotage. Certainly none of the children had visited the schools, which were chosen by the mother on the basis of their physical proximity to the grandmother's flat. T in particular values her education highly, as, given both her intelligence and application, she is entitled to do. She found herself in a school with a limited syllabus, focused on IT, totally at odds with all that she valued and excelled at (arts/drama-related subjects, et cetera). Though she did reasonably well at her new school, the perfunctory school reports provided by them suggest she was doing rather less work than at her English school, and on a very much reduced syllabus. She very soon let her father know that she was bored by her school (see the e-mail of 14th September 2012 at C451.b).
(xiii) There was the unsettling visit of the father in November 2012, as referred to by Cobb J.
(xiv) Both T and L talk of having "friends" at their new school. It is always
a puzzle to me that the English language, so rich in its range and nuances has so few ways of describing personal relationships. I have often puzzled at the ease with which people in contemporary society use the word "friendship" or "friends" to describe relationships of little significance, or indeed barely of acquaintanceship. Leaving that personal observation to one side, there is no evidence to suggest that those "friendships" have survived the return to England (with the sole possible exception of one in T's case), thus illustrating to me the very limited impact in the lives of each child of these purported "friends".
(xv) A clearly had not settled in his school in Spain, it being recorded at C358 that he did not like "the learning", nor indeed the strict teachers; and also he was bullied. I accept the evidence that A was bullied. He spoke to Ms. Chadha about that bullying and he was clearly distressed for a while at the recollection when so doing. L corroborated his younger brother's account, stating that he had taken A under his wing in the playground to protect him. I also accept the evidence that A told his mother of this bullying, and she promised to do something about it, but she ignored the complaint. I reject the mother's evidence that there is no bullying in Spain. She clearly has not listened to her sons, L and A, or is frankly simply lying when she so asserts. Equally I reject her evidence that A was badly bullied in his English school.
(xvi) I accept the evidence of T and L in particular that they were frequently neglected by their mother, who was preoccupied with establishing for herself a new life, her own life, using the computer frequently (for business or pleasure matters little) and at length, coincidentally thwarting the children from free electronic communication with their father.
(xvii) As a further illustration of her neglect, I accept the evidence that on two occasions two of the boys were put out of the house by the mother late of an evening and found themselves running around un-invigilated in the local small town centre square until rescued and returned to the mother by their Uncle Pablo.
(xviii) By 9th December T was telling her father, "I wanna go home" followed by one of the little "sad" faces which appear on digital screens. By 12th December she was asking her father to get her a school in England (see Volume C 451(b).)
(xix) The mother was clearly determined, after years of unhappiness in England, to have a new life of her own. She was significantly unavailable to the three oldest children, who, I find, were telling her of their unhappiness and their wish to go home to England. She ignored them.
(xx) The three oldest children have all made it abundantly clear over many months that England was, and remains, home, and that Spain was in effect unreal, with no sense that they belonged there, or were at home there. See in this context the three reports of Ms. Vivian where their thoughts are set out, and the earlier passages of this judgment where I consider Cobb J's, and my, views about the reliability of those expressions (paragraphs 45 50 above).
(xxi) In that context see by way of further illustration L's remarks to Ms. Vivian in her third report at paragraph 30 (clearly relating to the period in question) at D76:
"30. He told us it was quite stressful being asked questions. He talks to his mum the same amount as before, stating that often she is not at home, but if she is she calls regularly to talk. They talk for a long time, but he can't see her as she does not use Skype much. L said that living in Spain was 'pretty hectic' adding 'I really really want to stay here. If we lose I want to stay'. I put a scenario to L asking him to imagine how he would react if I were to come to collect him to say I had to return him to Spain [I reiterated this scenario was make-believe and would not happen in real life.] He said he would run away and would try to 'make it not happen which wouldn't involve me going to Spain'. He thinks 'everyone's really nice here; it's where I am originally from. I want to stay here, its home, when I am older I will live here', adding 'you know where you are, everyone's really nice'. L went on to say he felt 'awkward in Spain' he did not 'feel how I felt in England. Everyone's different there, the atmosphere is different. I didn't want change half way through my life'."
See also the observations A made to Ms. Vivian in that report about, in particular, his school life recorded at D78, paragraph 36, where he uses the term "wasted" of his life if he had to return to Spain, clearly reflecting his view of it in the same period.
(xxii ) Ms. Vivian has considered the possible influence of T on L and A, but says unequivocally at paragraph 36 of her second report of 7th May of last year:
"36. If the judge said he had to return to Spain A said 'we would just be shocked, what else can we say about it? Our lives would be gone and wasted'. 'Last time when we lived in Spain she put us in school it was really bad, I had no friends there, school was really horrible'. A went on to talk about his views of England. He likes it here as 'everybody knows everybody' and everyone in school knows one another, 'you can have really good friends'. He thinks there is a higher level of education which is important to him. On returning to Spain he said he would not 'let that happen', he would say 'why do you do this. Would just make it worse', I asked what he meant by worse, he said 'the family, N is only 5, he won't remember his father or sister'. For him he would 'not be with some of my family any more, not nice to have a split family; I suggested that his family was split now, he added 'not really, we can Skype mum every day. She's our family still. In some other ways it's like she's not in our family'. He regards T as part of the family, 'she's part of my family, is always nice, very helpful. We've had T for a long time. We won't be able to Skype her or whatever.'"
"13. A and his siblings have been in England living with their father in the family home in B since Christmas 2012. A said "I want to stay here, this is where my family and friends are, you cannot take away your relationships with other people." He has resumed lifelong friendships since going back to S M school in B. His best friend is J. A told me that Spain, "it is not the same place as where I normally live and where my life is". A went on to say "I do not feel like myself in Spain, I feel like I am in someone else's country not mine". A went on to describe that he feels like they were living in a "haunted city....no one can see us in that country we are there but no one can actually sees us in that country". I asked him what he meant when he said that "the people in Spain cannot see me," that he feels "invisible" but "I don't feel like that here in England". I asked
A whether there was anything about living in Spain that he liked, he said "no"."
See also T to Miss Blackburn at C429:
"13. Whilst at primary school T undertook a lot of extracurricular activities. She recalled having a club or class to attend most nights of the week (cookery club, Brownies, swimming, netball etc.). T told me that she had also been selected by S M for the Gifted and Talented Course. I am told that there was no fixed quota for the school and only she and a boy called D P had been selected from her year. Having been selected
T attended various courses (maths, French, Latin etc.) and competitions. In Year 5 (i.e. the penultimate year of primary school) T had also joined "The Da Vinci Group", an online learning platform for gifted young students which, she tells me, is a collaboration between Warwick University and Brasenose College, Oxford. It offered T the opportunity to interact with other students and develop skills in communication, philosophical thinking, debating etc. T has told me that she really enjoyed the Da Vinci Group, "it was challenging, I fed off it, I enjoyed using my brain, I am competitive and I was up against 14 year olds". T told me how she had competed against 14 years in a debate and won a scholarship. Although she had not been able to attend the resulting course that she was competing for (as the scholarship only covered 90% of the fees) she described it as "great to win though"."
Habitual Residence: Discussion
"24. I talked to N about his feelings about Spain. He said he is 'trying my best to say I don't want to go to Spain because we have been here all our lives and because my mum puts us out in the night and she lets us go to school on our own'. I asked what he meant by 'puts us out at night'. He said she says 'go to your friends and I don't know where my friends lived. My dad was there, but I did not know he was there. I asked whether he meant he was in his mother's house. He said he was, 'it's my grand-mother's house'. He added, in relation to living in the UK, 'we've been here all our lives .since we were babies ' '
"All of these factors feed into the essential question which is whether the child has achieved a sufficient degree of integration into a social and family environment in the country in question for his or her residence there to be termed 'habitual'."
"19. The Guardian emphasizes the unity of the sibling group and the court is able to consider this sibling unit as apart from their permanently disputatious parents when considering the habitual residence of its constituent members.
20. The Guardian's 3rd report highlights the closeness of the siblings and N's position within the group. Although observed in England under the primary care of their father, on balance it is likely that the same sibling dynamic obtained in Spain under the primary care of their mother.
"51. T, L, A and N present as a close, interdependent and highly functioning sibling group who have always lived together and who have gone through difficult experiences which in all probability have brought them even more together. They have each reported above on how they view their siblings and I will not repeat what they have said, as I think their comments speak for themselves. They report mutual respect for each other; they engage with each other in play and learning and seem to me to operate as a 'team'; they care for each other and love each other. Significantly, despite holding their own individual views and feelings that they acknowledge and accept, they have made clear through their actions in these proceedings that they wish to remain as a sibling unit in this country. For them, to be separated from each other across jurisdictions is not an option they can countenance. I would say on their behalf they find the prospect intolerable.
52. It seems to me that, as is usual, these siblings have affinities, alliances and sub-groupings. T and L, being closer in age, engage in 'grown up' activities together such as listening to music [almost certainly the younger ones will benefit from this older sibling knowledge in the future]. L, A and N play a lot together, A and L share mutual school friends, it seems that L has done and continues to take the shyer A 'under his wing';
A 'plays and chills' with his friends at school, he said A did not have school friends in Spain and he would 'come and hang out with me and my friends'. All of the siblings interact with N and 'look after' him; T reads with him, A helps dresses him and from my observations A and N are particularly close. The head teacher at the boys' school confirms the closeness between the boys.""
I agree with those paragraphs, mirroring the findings made above
(paragraph 70) as to their shared experiences as a group and the impact that has on integration.
The Spanish Proceedings
"The proceedings in England as well as the ones in Spain have been commenced by the mother. There are no records that the father has commenced any proceedings in Spain or England. The purpose of the proceedings commenced by the mother in England under The Hague Convention is for protective measures to be taken in relation to the return of the children."
"On the other hand, the judgment delivered by the English courts does not have any res judicata effects due to the special and summary nature of the referred proceedings of protective measures given the current proceedings, which are proceedings of entire judicial cognisance that have res judicata."
It is noteworthy that the mother and her Spanish lawyer attended that hearing, and indeed the mother gave evidence along with other witnesses. It is further clear that they made no reference to any English proceedings in the course of so doing.
The Question Posed by the Court of Appeal
"15. T describes her relationship with the boys as 'very normal'. She is very close to L, although they have a lot of arguments as well. We discussed their differences in music, he likes rap, she likes Indie. She was interested in my music choices. She said L is a lot like her; 'more outgoing, we speak our minds a lot, more confident. We have a close relationship but means we fight more; I'm close to his friends too. [We are] the duo of humour, tricksters', she went on to tell me about an April fool's joke they played on their father. N, she thinks is 'quite independent, he has learnt to read already it makes us closer because I'm like that as well, we read together in bed'. She added 'we noticed how incredible he is'. She would miss him the most if he had to return to Spain; 'we are really close, he is so sweet .there are times when we're upset, he makes us feel better, he's really caring , he has a sense, if he knows something's serious he goes over and holds hands. He has had it ever since he was little'. She thinks L and
A are more like her father, 'very capable, they just don't love it [reading] like I do'. T explained A is 'very different' to the rest of us, a 'different person, more shy, less outgoing. He has a clever sense of reason and justice.'"
T later said that she "thinks that she would be 'OK' staying if she knew the boys wanted to return". NB, this position is dependent on the boys going voluntarily, not being coerced against their will, as is quite clear from her phrasing.
"46. I believe that T finds the idea of her brothers being forced to return to Spain and being separated from her almost too painful to comprehend. I recall that she grimaced when we talk about it. This issue will be addressed by Ms Vivian in her report when she meets with all four children later this month and I do not seek to say anything substantive regarding this issue save to record that even though T readily recognises that it would be "horrible" she would chose to stay in England rather than accompany her brothers back to Spain. She has told me that it would be all the more painful because (a) she knows how intensely they [T's brothers] don't want to return and/or live in Spain ; (b) she would be where she wants to be and she would know that they were not where they wanted to be; (c) she knew that not having her with them in Spain would make matters worse for them in Spain, "they would be lost" ; and (d) she would be forced to make a decision even though she knows what her decision will be."
"32. He talked on and said 'most of the stuff is hard to describe, it's something I have inside', adding 'if I go to Spain nothing will forgive her making us go there, even a million pounds will not make me forget she took us from the country we want to live in'. I asked him who he meant as 'we'; he said me, brothers, basically family'. I asked how it would be if T stayed in England as his comment had referred to himself and his brothers returning to Spain. He said 'that's worse than going to Spain, if we all go it's awful, can't describe, it's so bad, but separately as well I can't describe how horrible it is and split us apart so we can't see each other'. He went on to say they would not be a 'full' family, it would be 'awful, even if we go to see her in holidays'. We discussed separation from T further; he said 'it is not just T, anyone in the family.' I asked if he meant his father, he said 'yeah' but explained that he is used to not being with one or other of his parents. Interestingly the point he was making was about what he regards as his family i.e. his siblings. He explained 'it is awful to be separated from another parent, but I am used to it, but siblings is different'."
"36. . On returning to Spain he said he would not 'let that happen', he would say 'why do you do this. Would just make it worse', I asked what he meant by worse, he said 'the family, N is only 5, he won't remember his father or sister'. For him he would 'not be with some of my family any more, not nice to have a split family; I suggested that his family was split now, he added 'not really, we can Skype mum every day. She's our family still. In some other ways it's like she's not in our family'. He regards T as part of the family, 'she's part of my family, is always nice, very helpful. We've had T for a long time. We won't be able to Skype her or whatever.'"
"47. All of the children, including T, have reported their wish to have and to continue to have a relationship with their mother; she is an important person in their lives. Despite reporting that she has failed and still fails to understand their past and present wishes about living in Spain and feeling that she has prioritised her own life over theirs, all four children very much want to see their mother, in England. I consider their actions in speaking to her on a regular basis evidence of a determined effort on their part to maintain their relationship with her. All of this indicates that, from their side, their relationship(s) with their mother are potentially enduring; however I do think that their relationship(s) with her, to differing degrees, have been damaged and are in jeopardy. Further enforcement of her current position is likely to cause further damage, perhaps irreparable."
48. These particular children, given what they have been through in their short lives, [extended parental disharmony in the family home, parental separation, a move to another jurisdiction, in excess of 12 months of 'summary' legal proceedings including the anticipation of a return order which breaks the sibling group], are very likely to have difficulty renewing their bond with their mother, especially as I cannot but share their uncertainty about her ability to meet their emotional needs. They would be thrust into a situation having not spent any 'real' time with her since they left Spain. Whatever the outcome of these proceedings work towards repairing their relationship with their mother will need to be undertaken with and for these children and I cannot be confident about the mother's capacity to do this."
"In the absence of any concrete evidence about the mother's ability to meet the children's needs on an emotional level, I think they (L & A) would be put in a situation which would be intolerable for them and there would be
a real risk of harm to their emotional development."
(See paragraph 49 of her latest report). I agree.
"40. The day to day lives of these children have been unsettled and uncertain for almost 2 years. Such highly charged, emotive, and protracted proceedings which directly involve children to the degree that they have in this case are very likely to have had a major impact on their own individual development, their physical, psychological and emotional wellbeing. This should not be underestimated and I would urge all of the adults involved to have this consideration uppermost in mind."
"51. T, L, A and N present as a close, interdependent and highly functioning sibling group who have always lived together and who have gone through difficult experiences which in all probability have brought them even more together. They have each reported above on how they view their siblings and I will not repeat what they have said, as I think their comments speak for themselves. They report mutual respect for each other; they engage with each other in play and learning and seem to me to operate as a 'team'; they care for each other and love each other. Significantly, despite holding their own individual views and feelings that they acknowledge and accept, they have made clear through their actions in these proceedings that they wish to remain as a sibling unit in this country. For them, to be separated from each other across jurisdictions is not an option they can countenance. I would say on their behalf they find the prospect intolerable."
"55. Splitting this particular sibling group in their particular circumstances would be intolerable and harmful for them, not only because of the distress at day to day separation but also the knock-on consequences. Individually, given their different personalities and ages and stages of development, the emotional toll would be great for all of them. The boys and T would experience loss which I think would manifest itself differently in each child and the experience for them, I think, would be akin to experiencing a traumatic event, the recovery from which would be slow and unlikely to be complete. As I have suggested, the experiences of the children to date already makes them already emotionally vulnerable. The sibling group is the one significant, lifelong and stable factor in their lives. Furthermore I am in little doubt that the loss experienced by splitting the sibling group would made all the more profound ['Our lives would be gone and wasted', A] by what would bring it about, namely their removal from their secure base and being taken to live in Spain where they were unable to settle in 2012 to live with their mother with whom [to differing degrees], I can only assess, they have a fractured relationship. "
Children's Objections: Jurisdiction to Reconsider
Child's Objections: Discussion
(i) the deficiencies in the education they received or are likely to receive in Spain;
(ii ) the real possibility that their father could not return there for contact without considerable risk;
(iii ) thus they would be returned to their mother whose care of them is discussed above; and
(iv ) who, in their view (and mine), will seek to interfere in the contact between them and their father; and
(v ) the separation from T.
The factual basis underpinning those statements is clearly established. These are not fanciful considerations entertained by the children, but are rooted in reality.
"43. My Lords, in cases where a discretion arises from the terms of the Convention itself, it seems to me that the discretion is at large. The court is entitled to take into account the various aspects of the Convention policy, alongside the circumstances which gave the court a discretion in the first place and the wider considerations of the child's rights and welfare.
I would, therefore, respectfully agree with Thorpe LJ in the passage quoted in paragraph 32 above, save for the word "overriding" if it suggests that the Convention objectives should always be given more weight than the other considerations. Sometimes they should and sometimes they should not.
44. That, it seems to me, is the furthest one should go in seeking to put a gloss on the simple terms of the Convention. As is clear from the earlier discussion, the Convention was the product of prolonged discussions in which some careful balances were struck and fine distinctions drawn. The underlying purpose is to protect the interests of children by securing the swift return of those who have been wrongfully removed or retained. The Convention itself has defined when a child must be returned and when she need not be. Thereafter the weight to be given to Convention considerations and to the interests of the child will vary enormously. The extent to which it will be appropriate to investigate those welfare considerations will also vary. But the further away one gets from the speedy return envisaged by the Convention, the less weighty those general Convention considerations must be.
45. By way of illustration only, as this House pointed out in Re D (Abduction: Rights of Custody)  UKHL 51;  1 AC 619, paragraph 55, "it is inconceivable that a court which reached the conclusion that there was a grave risk that the child's return would expose him to physical or psychological harm or otherwise place him in an intolerable situation would nevertheless return him to face that fate." It was not the policy of the Convention that children should be put at serious risk of harm or placed in intolerable situations. In consent or acquiescence cases, on the other hand, general considerations of comity and confidence, particular considerations relating to the speed of legal proceedings and approach to relocation in the home country, and individual considerations relating to the particular child might point to a speedy return so that her future can be decided in her home country.
46. In child's objections cases, the range of considerations may be even wider than those in the other exceptions. The exception itself is brought into play when only two conditions are met: first, that the child herself objects to being returned and second, that she has attained an age and degree of maturity at which it is appropriate to take account of her views. These days, and especially in the light of article 12 of the United Nations Convention on the Rights of the Child, courts increasingly consider it appropriate to take account of a child's views. Taking account does not mean that those views are always determinative or even presumptively so. Once the discretion comes into play, the court may have to consider the nature and strength of the child's objections, the extent to which they are "authentically her own" or the product of the influence of the abducting parent, the extent to which they coincide or are at odds with other considerations which are relevant to her welfare, as well as the general Convention considerations referred to earlier. The older the child, the greater the weight that her objections are likely to carry. But that is far from saying that the child's objections should only prevail in the most exceptional circumstances."
(i) The underlying "purpose [of the Convention] is to protect the interests of children by securing the swift return of those who have been wrongly removed or retained." (See Re: M above, paragraph 44). The fundamental purpose has been thwarted in this case beyond question by its duration alone, and thus this factor is significantly reduced in importance.
(ii) The Spanish proceedings have only been considered in this court in passing, but on the face of it it appears that the English County Court proceedings may well have taken precedence over the Spanish ones. Irrespective of that point, the hearing before the Spanish Court in February was one-sided in that the father was not able to attend. Furthermore, the mother appears to have misled that court, and now makes it abundantly clear that she will attempt to uphold its order, come what may. In addition on the face of it the children did not have their voice heard in those proceedings. It seems therefore to me that although the Spanish court has given a judgment and made a consequential order, those proceedings are susceptible to challenge, and this court is able to find that there is at the very least an arguable case for saying that the relevant issues should be tried in this country, and/or that the Spanish order will not be enforced in this jurisdiction.
(iii) I have already referred to my findings in paragraphs 117 120, and do not need to repeat them, though they are all relevant to the question of discretion in the case of each boy.
(iv) They coincide with other considerations relevant to each boy's welfare for reasons too obvious to require further elaboration.
Those are my reasons.
STATEMENT OF FACTS AND ISSUES (Agreed between all Appellants and the Respondents)
Hague Convention Proceedings
Final hearing in the High Court
Proceedings in the Court of Appeal
Remitted High Court proceedings
Appeal to the Supreme Court
a. How should a court determine a child's habitual residence in a case concerned with the 1980 Hague Convention as complemented by Brussels II Revised?;
b. Having regard to (a) did Cobb J and the Court of Appeal fall into error in their approach to this issue?;
c. How should a court approach an application for the joinder in 1980 Hague Convention proceedings of a child such as T?;
d. Having regard to (c) did Cobb J and the Court of Appeal fall into error in their approach to this issue?